EXHIBIT 10.2
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ARMSTRONG WORLD INDUSTRIES, INC.
ASBESTOS PERSONAL INJURY SETTLEMENT TRUST AGREEMENT
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This Armstrong World Industries, Inc. Asbestos Personal Injury
Settlement Trust Agreement ("PI TRUST AGREEMENT"), dated the date set forth on
the signature page hereof and effective as of the Effective Date, is entered
into by Armstrong World Industries, Inc. ("AWI," the "SETTLOR," or the
"DEBTOR"), the Debtor and debtor-in-possession in Case No. 00-4471 (RJN) in the
United States Bankruptcy Court for the District of Delaware as Settlor; the
Legal Representative for Asbestos-Related Future Claimants ("FUTURE CLAIMANTS'
REPRESENTATIVE"); the Official Committee of Asbestos Creditors ("ACC"); and the
Trustees ("Trustees") and the members of the PI Trust Advisory Committee ("TAC")
identified on the signature page hereof and appointed at Confirmation pursuant
to Armstrong World Industries, Inc. Fourth Amended Plan of Reorganization under
Chapter 11 of the United States Bankruptcy Code, dated May 23, 2003 ("PLAN"), as
such Plan may be amended, modified or supplemented from time to time. All
capitalized terms not otherwise defined herein shall have their respective
meanings as set forth in the Plan, and such definitions are incorporated herein
by reference. All capitalized terms not defined herein or defined in the Plan,
but defined in the Bankruptcy Code or Rules, shall have the meanings ascribed to
them by the Bankruptcy Code and Rules, and such definitions are incorporated
herein by reference.
WHEREAS, at the time of the entry of the order for relief in
the Chapter 11 case, AWI was named as a defendant in actions involving personal
injury ("PI") or death claims caused by exposure to asbestos-containing products
for which AWI, its predecessors, successors and assigns have legal liability
("ASBESTOS PERSONAL INJURY CLAIMS" as defined in the Plan); and
WHEREAS, AWI has reorganized under the provisions of Chapter
11 of the Bankruptcy Code in a case pending in the United States Bankruptcy
Court for the District of Delaware, known as In re Armstrong World Industries,
Inc., Debtor, Case No. 00-4471 (RJN); and
WHEREAS, the Plan has been confirmed by the Bankruptcy Court;
and
WHEREAS, the Plan provides, inter alia, for the creation of
the Armstrong World Industries, Inc. Asbestos Personal Injury Settlement Trust
("PI TRUST"); and
WHEREAS, pursuant to the Plan, the PI Trust is to use its
assets and income to satisfy all Asbestos Personal Injury Claims; and
WHEREAS, it is the intent of AWI, the Trustees, the ACC, the
TAC, and the Future Claimants' Representative that the PI Trust be administered,
maintained, and operated at all times through mechanisms that provide reasonable
assurance that the PI Trust will satisfy all Asbestos Personal Injury Claims
pursuant to the AWI Asbestos Personal Injury Settlement Trust Distribution
Procedures ("TDP") that are attached to the Plan as Exhibit 1.24 in
substantially the same manner, and in strict compliance with the terms of this
PI Trust Agreement; and
WHEREAS, pursuant to the Plan, the PI Trust is intended to
qualify as a "qualified settlement fund" within the meaning of section 1.468B-1
et seq. of the Treasury Regulations promulgated under section 468B of the
Internal Revenue Code ("IRC"); and
WHEREAS, the Bankruptcy Court has determined that the PI Trust
and the Plan satisfy all the prerequisites for an injunction pursuant to section
524(g) of the Bankruptcy Code, and such injunction has been entered in
connection with the Confirmation Order;
NOW, THEREFORE, it is hereby agreed as follows:
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SECTION 1
AGREEMENT OF TRUST
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1.1 CREATION AND NAME. AWI as Settlor hereby creates a trust known
as the "Armstrong World Industries, Inc. Asbestos Personal Injury Settlement
Trust," which is the PI Trust provided for and referred to in the Plan. The
Trustees of the PI Trust may transact the business and affairs of the PI Trust
in the name of the PI Trust.
1.2 PURPOSE. The purpose of the PI Trust is to assume the
liabilities of AWI, its predecessors and successors in interest, for all
Asbestos Personal Injury Claims (as defined in the Plan), and to use the PI
Trust's assets and income to pay the holders of all Asbestos Personal Injury
Claims in accordance with this PI Trust Agreement and the TDP in such a way that
such holders of Asbestos Personal Injury Claims are treated fairly, equitably
and reasonably in light of the limited assets available to satisfy such claims,
and to otherwise comply in all respects with the requirements of a trust set
forth in section 524(g)(2)(B) of the Bankruptcy Code.
1.3 TRANSFER OF ASSETS. Pursuant to the Plan, certain assets have
been transferred and assigned to the PI Trust to settle and discharge all
Asbestos Personal Injury Claims ("PI TRUST ASSETS"). Pursuant to the Plan, AWI,
its successors in interest thereto, from and after the Effective Date
("REORGANIZED AWI") and others may also transfer and assign additional assets to
the PI Trust from time to time, which will be added to the PI Trust Assets. In
all events, the PI Trust Assets will be transferred to the PI Trust free and
clear of any liens or other claims by AWI, Reorganized AWI, any creditor, or
other entity. AWI, Reorganized AWI, and any other transferors shall also execute
and deliver such documents to the PI Trust as the Trustees reasonably request to
transfer and assign the PI Trust Assets to the PI Trust.
1.4 ACCEPTANCE OF ASSETS AND ASSUMPTION OF LIABILITIES
(a) In furtherance of the purposes of the PI Trust, the Trustees,
on behalf of the PI Trust, hereby expressly accept the transfer and assignment
to the PI Trust of the PI Trust Assets in the time and manner contemplated in
the Plan.
(b) In furtherance of the purposes of the PI Trust, the Trustees,
on behalf of the PI Trust, expressly assume all liability for (i) all Asbestos
Personal Injury Claims and (ii) all premiums, deductibles, retrospective premium
adjustments, security or collateral arrangements, or any other charges, costs,
fees, or expenses (if any) that become due to any insurer in connection with the
Asbestos PI Insurance Asset (as such term is defined in the Plan) as a result of
Asbestos Personal Injury Claims, asbestos-related personal injury claims against
Entities insured under policies included in the Asbestos PI Insurance Asset by
reason of vendor's endorsements, or under indemnity provisions of settlement
agreements that AWI made with various insurers prior to the Commencement Date
(as such term is defined in the Plan) to the extent that those indemnity
provisions relate to Asbestos Personal Injury Claims.
(c) No provision herein or in the TDP shall be construed to
mandate distributions on any claims or other actions that would contravene the
PI Trust's compliance with the requirements of a qualified settlement fund
within the meaning of section 1.468B-1 et seq. of the Treasury Regulations
promulgated under section 468B of the IRC.
(d) AWI and Reorganized AWI shall be entitled to indemnification
from the PI Trust for any expenses, costs, and fees (including attorneys' fees
and costs, but excluding any such expenses, costs, and fees incurred prior to
the Effective Date), judgments, settlements, or other liabilities arising from
or incurred in connection with any action related to Asbestos Personal Injury
Claims, including, but not limited to, indemnification or contribution for such
claims prosecuted against Reorganized AWI.
(e) Nothing in this PI Trust Agreement shall be construed in any
way to limit the scope, enforceability, or effectiveness of the Section 524(g)
injunction issued in connection with the Plan or the PI Trust's assumption of
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all liability for Asbestos Personal Injury Claims, subject to the provisions of
Section 1.4(b) above.
SECTION 2
POWERS AND TRUST ADMINISTRATION
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2.1 POWERS.
(a) The Trustees are and shall act as the fiduciaries to the PI
Trust in accordance with the provisions of this PI Trust Agreement and the Plan.
The Trustees shall, at all times, administer the PI Trust and the PI Trust
Assets in accordance with the purposes set forth in Section 1.2 above. Subject
to the limitations set forth in this PI Trust Agreement, the Trustees shall have
the power to take any and all actions that, in the judgment of the Trustees, are
necessary or proper to fulfill the purposes of the PI Trust, including, without
limitation, each power expressly granted in this Section 2.1, any power
reasonably incidental thereto, and any trust power now or hereafter permitted
under the laws of the State of Delaware.
(b) Except as required by applicable law or otherwise specified
herein, the Trustees need not obtain the order or approval of any court in the
exercise of any power or discretion conferred hereunder.
(c) Without limiting the generality of Section 2.1(a) above, and
except as limited below, the Trustees shall have the power to:
(i) receive and hold the PI Trust Assets, vote the
Reorganized AWI common stock, and exercise all rights with respect to,
and sell, any securities issued by Reorganized AWI that are included in
the PI Trust Assets, subject to any restrictions set forth in the
Restated Certificate of Reorganized AWI;
(ii) invest the monies held from time to time by the PI
Trust;
(iii) sell, transfer, or exchange any or all of the PI
Trust Assets at such prices and upon such terms as the Trustees may
consider proper, consistent with the other terms of this PI Trust
Agreement;
(iv) enter into leasing and financing agreements with
third parties to the extent such agreements are reasonably necessary to
permit the PI Trust to operate;
(v) pay liabilities and expenses of the PI Trust,
including, but not limited to, PI Trust expenses;
(vi) establish such funds, reserves and accounts within
the PI Trust estate, as deemed by the Trustees to be useful in carrying
out the purposes of the PI Trust;
(vii) sue and be sued and participate, as a party or
otherwise, in any judicial, administrative, arbitrative, or other
proceeding;
(viii) establish, supervise and administer the PI Trust in
accordance with the TDP and the terms thereof;
(ix) appoint such officers and hire such employees and
engage such legal, financial, accounting, investment, auditing and
forecasting, and other consultants and agents as the business of the PI
Trust requires, and delegate to such persons such powers and
authorities as the fiduciary duties of the Trustees permit and as the
Trustees, in their discretion, deem advisable or necessary in order to
carry out the terms of this PI Trust;
(x) pay employees, legal, financial, accounting,
investment, auditing, and forecasting, and other consultants, advisors,
and agents, including those engaged by the PI Trust in connection with
its alternative dispute resolution activities, reasonable compensation;
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(xi) compensate the Trustees, the TAC members, and the
Future Claimants' Representative as provided below, and their
employees, legal, financial, accounting, investment and other advisors,
consultants, independent contractors, and agents, and reimburse the
Trustees, the TAC members and the Future Claimants' Representative all
reasonable out-of-pocket costs and expenses incurred by such persons in
connection with the performance of their duties hereunder;
(xii) execute and deliver such instruments as the Trustees
consider proper in administering the PI Trust;
(xiii) enter into such other arrangements with third parties
as are deemed by the Trustees to be useful in carrying out the purposes
of the PI Trust, provided such arrangements do not conflict with any
other provision of this PI Trust Agreement;
(xiv) in accordance with Section 4.6 below, defend,
indemnify and hold harmless (and purchase insurance indemnifying) (A)
the Trustees, the members of TAC, and the Future Claimants'
Representative, and (B) the officers and employees of the PI Trust, and
any agents, advisors and consultants of the PI Trust, the TAC, or the
Future Claimants' Representative (the "ADDITIONAL INDEMNITEES"), to the
fullest extent that a corporation or trust organized under the laws of
the State of Delaware is from time to time entitled to indemnify and/or
insure its directors, trustees, officers, employees, agents, advisors
and representatives;
(xv) delegate any or all of the authority herein conferred
with respect to the investment of all or any portion of the PI Trust
Assets to any one or more reputable individuals or recognized
institutional investment advisors or investment managers without
liability for any action taken or omission made because of any such
delegation, except as provided in Section 4.4 below;
(xvi) consult with Reorganized AWI, the TAC and the Future
Claimants' Representative at such times and with respect to such issues
relating to the conduct of the PI Trust as the Trustees consider
desirable; and
(xvii) make, pursue (by litigation or otherwise), collect,
compromise or settle, in the name of the PI Trust or the name of
Reorganized AWI, any claim, right, action, or cause of action included
in the PI Trust Assets including, but not limited to, insurance
recoveries, before any court of competent jurisdiction; provided that
settlement of actions before the Bankruptcy Court require the approval
of the Bankruptcy Court after notice to Reorganized AWI.
(d) The Trustees shall not have the power to guarantee any debt of
other persons.
(e) The Trustees shall give the TAC, the Future Claimants'
Representative and Reorganized AWI prompt notice of any act performed or taken
pursuant to Sections 2.1(c)(i), (iii), (vii), or (xv) above, and any act
proposed to be performed or taken pursuant to Section 2.2(f) below.
2.2 GENERAL ADMINISTRATION.
(a) The Trustees shall adopt and act in accordance with the PI
Trust Bylaws, a copy of which is attached hereto as Annex A. To the extent not
inconsistent with the terms of this PI Trust Agreement, the PI Trust Bylaws
shall govern the affairs of the PI Trust. In the event of an inconsistency
between the PI Trust Bylaws and this PI Trust Agreement, the PI Trust Agreement
shall govern.
(b) The Trustees shall (i) timely file such income tax and other
returns and statements and shall timely pay all taxes required to be paid, (ii)
comply with all withholding obligations, as required under the applicable
provisions of the IRC and of any state law and the regulations promulgated
thereunder, (iii) meet without limitation all requirements necessary to qualify
and maintain qualification of the PI Trust as a qualified settlement fund within
the meaning of section 1.468B-1 et seq. of the Treasury Regulations promulgated
under section 468B of the IRC, and (iv) take no action that could cause the PI
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Trust to fail to qualify as a qualified settlement fund within the meaning of
section 1.468B-1 et seq. of the Treasury Regulations promulgated under section
468B of the IRC.
(c) The Trustees shall timely account to the Bankruptcy Court as
follows:
(i) The Trustees shall cause to be prepared and filed
with the Bankruptcy Court, as soon as available, and in any event
within one hundred and twenty (120) days following the end of each
fiscal year, an annual report containing financial statements of the PI
Trust (including, without limitation, a balance sheet of the PI Trust
as of the end of such fiscal year and a statement of operations for
such fiscal year) audited by a firm of independent certified public
accountants selected by the Trustees and accompanied by an opinion of
such firm as to the fairness of the financial statements' presentation
of the cash and investments available for the payment of claims and as
to the conformity of the financial statements with generally accepted
accounting principles. The Trustees shall provide a copy of such report
to the TAC, the Future Claimants' Representative, and Reorganized AWI
when such reports are filed with the Bankruptcy Court.
(ii) Simultaneously with delivery of each set of financial
statements referred to in Article 2.2(c)(i) above, the Trustees shall
cause to be prepared and filed with the Bankruptcy Court a report
containing a summary regarding the number and type of claims disposed
of during the period covered by the financial statements. The Trustees
shall provide a copy of such report to the TAC, the Future Claimants'
Representatives, and Reorganized AWI when such report is filed.
(iii) All materials required to be filed with the
Bankruptcy Court by this Section 2.2(c) shall be available for
inspection by the public in accordance with procedures established by
the Bankruptcy Court and shall be filed with the Office of the United
States Trustee for the District of Delaware.
(d) The Trustees shall cause to be prepared as soon as practicable
prior to the commencement of each fiscal year a budget and cash flow projections
covering such fiscal year and the succeeding four fiscal years. The budget and
cash flow projections shall include determining the Maximum Annual Payment
pursuant to Section 2.4 of the TDP, and the Asbestos Personal Injury Claims
Payment Ratio pursuant to Section 2.5 of the TDP. The Trustees shall provide a
copy of the budget and cash flow projections to the TAC and the Future
Claimants' Representative.
(e) The Trustees shall consult with the TAC and the Future
Claimants' Representative (i) on the general implementation and administration
of the PI Trust; (ii) on the general implementation and administration of the
TDP; and (iii) on such other matters as may be required under this PI Trust
Agreement and the TDP.
(f) The Trustees shall be required to obtain the consent of the
TAC and the Future Claimants' Representative pursuant to the Consent Process set
forth in Section 5.7(b) and 6.6(b) below, in addition to any other instances
elsewhere enumerated, in order:
(i) to change the Claims Payment Ratio described in
Section 2.5 of the TDP in the event that the requirements for such a
change as set forth in said provision have been met;
(ii) to change the Scheduled Diseases, Disease Levels
and/or Medical/Exposure Criteria set forth in Section 5.3(a)(3) of the
TDP, and/or the Maximum Values set forth in Section 5.3(b)(4) and
Section 5.4(a) of the TDP;
(iii) to change the Payment Percentage described in Section
2.3 of the TDP as provided in Section 4.2 of the TDP;
(iv) to establish and/or to change the Claims Materials to
be provided holders of Asbestos Personal Injury Claims under Section
6.1 of the TDP;
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(v) to require that claimants provide additional kinds of
medical and/or exposure evidence pursuant to Section 7.1 of the TDP;
(vi) to change the form of release to be provided pursuant
to Section 7.8 of the TDP;
(vii) to terminate the PI Trust pursuant to Section 7.2
below;
(viii) to settle the liability of any insurer under any
insurance policy or legal action related thereto;
(ix) to change the compensation of the members of the TAC,
the Future Claimants' Representative or Trustees, other than to reflect
cost-of-living increases or changes approved by the Bankruptcy Court as
otherwise provided herein;
(x) to take structural or other actions to minimize any
tax on the PI Trust Assets; or
(xi) to amend the PI Trust Bylaws in accordance with the
terms thereof;
(xii) to amend any provision of this PI Trust Agreement or
the TDP in accordance with the terms thereof;
(xiii) to vote the stock of the Reorganized Debtor for the
purpose of electing members of the Board of Directors of the
Reorganized Debtor; or
(xiv) to merge any asbestos claims resolution organization
formed by the PI Trust with another asbestos claims resolution
organization that is not specifically created by this PI Trust
Agreement or the TDP, or to contract with another asbestos claims
resolution organization or other entity that is not specifically
created by this PI Trust Agreement or the TDP, or permit any other
party to join in any asbestos claims resolution organization that is
formed by the PI Trust pursuant to the PI Trust Agreement or the TDP;
provided that such merger, contract or joinder shall not (a) subject
Reorganized AWI or any successors in interest thereto, to any risk of
having any PI Trust Claim asserted against it or them, or (b) otherwise
jeopardize the validity or enforceability of the section 524(g)
injunction; and provided further that the terms of such merger will
require the surviving organization to make decisions about the
allowability and value of claims in accordance with Section 2.1 of the
TDP which requires that such decisions be based on the provisions of
the TDP.
(g) The Trustees shall meet with the TAC and the Future Claimants'
Representative no less often than quarterly. The Trustees shall meet in the
interim with the TAC and the Future Claimants' Representative when so requested
by either.
(h) The Trustees, upon notice from either the TAC or the Future
Claimants' Representative, if practicable in view of pending business, shall at
their next meeting with the TAC or the Future Claimants' Representative consider
issues submitted by the TAC or the Future Claimants' Representative.
(i) Periodically, but not less often than once a year, the
Trustees shall make available to claimants and other interested parties the
number of claims by disease levels that have been resolved both by individual
review and by arbitration, as well as by trial, indicating the amounts of the
awards and the averages of the awards by jurisdiction pursuant to Section 7.10
of the TDP.
2.3 CLAIMS ADMINISTRATION.
The Trustees shall promptly proceed to implement the TDP.
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SECTION 3
ACCOUNTS, INVESTMENTS, AND PAYMENTS
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3.1 ACCOUNTS. The Trustees may, from time to time, create such
accounts and reserves within the PI Trust estate as they may deem necessary,
prudent, or useful in order to provide for the payment of expenses and payment
of Asbestos Personal Injury Claims and may, with respect to any such account or
reserve, restrict the use of monies therein.
3.2 INVESTMENTS. Investment of monies held in the PI Trust shall
be administered in the manner in which individuals of ordinary prudence,
discretion, and judgment would act in the management of their own affairs,
subject to the following limitations and provisions:
(a) The PI Trust shall not acquire, directly or indirectly, equity
in any entity (other than Reorganized AWI or any successor to Reorganized AWI)
or business enterprise if, immediately following such acquisition, the PI Trust
would hold more than 5% of the equity in such entity or business enterprise. The
PI Trust shall not hold, directly or indirectly, more than 10% of the equity in
any entity (other than Reorganized AWI or any successor to Reorganized AWI) or
business enterprise.
(b) The PI Trust shall not acquire or hold any long-term debt
securities unless (i) such securities are PI Trust Assets under the Plan, (ii)
such securities are rated "Baa" or higher by Moody's, "BBB" or higher by
Standard & Poor's ("S&P'S"), or have been given an equivalent investment grade
rating by another nationally recognized statistical rating agency, or (iii) have
been issued or fully guaranteed as to principal and interest by the United
States of America or any agency or instrumentality thereof.
(c) The PI Trust shall not acquire or hold for longer than ninety
(90) days any commercial paper unless such commercial paper is rated "Prime-1"
or higher by Moody's or "A-1" or higher by S&P's or has been given an equivalent
rating by another nationally recognized statistical rating agency.
(d) Excluding any securities by the Debtor or Reorganized AWI, the
PI Trust shall not acquire or hold any common or preferred stock or convertible
securities unless such stock or securities are rated "A" or high by Moody's or
"A" or higher by S&P's or have been given an equivalent investment grade rating
by another nationally recognized statistical rating agency.
(e) The PI Trust shall not acquire any debt securities or other
instruments issued by any entity (other than debt securities or other
instruments issued or fully guaranteed as to principal and interest by the
United States of America or any agency or instrumentality thereof) if, following
such acquisition, the aggregate market value of all debt securities and
instruments issued by such entity held by the PI Trust would exceed 2% of the
aggregate value of the PI Trust estate. The PI Trust shall not hold any debt
securities or other instruments issued by any entity (other than debt securities
or other instruments issued or fully guaranteed as to principal and interest by
the United States of America or any agency or instrumentality thereof and other
than debt securities or other instruments of Reorganized AWI or any successor to
Reorganized AWI) to the extent that the aggregate market value of all securities
and instruments issued by such entity held by the PI Trust would exceed 5% of
the aggregate value of the PI Trust Assets.
(f) The PI Trust shall not acquire or hold any certificates of
deposit unless all publicly held, long-term debt securities, if any, of the
financial institution issuing the certificate of deposit and the holding
company, if any, of which such financial institution is a subsidiary, meet the
standards set forth in Section 3.2(b) above.
(g) The PI Trust may acquire and hold any securities or
instruments issued by Reorganized AWI or any successor to Reorganized AWI, or
obtained as proceeds of litigation or otherwise to resolve disputes, without
regard to the limitations set forth in Subsections (a)-(f) above.
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(h) The PI Trust shall not acquire or hold any repurchase
obligations unless, in the opinion of the Trustees, they are adequately
collateralized.
(i) The PI Trust shall not acquire or hold any options other than
options or other derivative securities acquired or held in connection with bona
fide hedging transactions with respect to the stock of Reorganized AWI to the
extent then permitted by the Articles of Incorporation of Reorganized AWI.
3.3 SOURCE OF PAYMENTS. All PI Trust expenses and payments and all
liabilities with respect to claims shall be payable solely by the Trustees out
of the PI Trust Assets. Neither AWI, Reorganized AWI, their subsidiaries, any
successor in interest, the present or former directors, officers, employees or
agents of AWI, Reorganized AWI, nor the Trustees, the TAC or Future Claimants'
Representative, or any of their officers, agents, advisors, or employees shall
be liable for the payment of any PI Trust expense or any other liability of the
PI Trust.
SECTION 4
TRUSTEES
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4.1 NUMBER. There shall be five (5) Trustees. The initial Trustees
shall be those persons named on the signature page hereof.
4.2 TERM OF SERVICE.
(a) The five initial Trustees named pursuant to Article 4.1 above
shall each serve an initial two (2) year term. At the expiration of these
initial two (2) year terms, the number of Trustees shall be reduced from five
(5) to three (3), unless the TAC and the Future Claimants' Representative agree
that the Trust should maintain five (5) Trustees past this initial two (2) year
term. When the number of Trustees is reduced from five (5) to three (3),
Trustees Anne Ferazzi, Thomas Tully, and Harry Huge shall continue to serve as
Trustees, serving staggered terms of three (3), four (4), or five (5) years,
such terms to be determined by the TAC and the Future Claimants' Representative.
Thereafter, each Trustee's term of service shall be five (5) years. The initial
Trustees shall serve from the Effective Date until the earlier of (i) the end of
his or her term, (ii) his or her death, (iii) his or her resignation pursuant to
Section 4.2(b) below, (iv) his or her removal pursuant to Section 4.2(c) below,
or (v) the termination of the PI Trust pursuant to Section 7.2 below.
(b) A PI Trustee may resign at any time by written notice to the
remaining Trustees, the TAC and the Future Claimants' Representative. Such
notice shall specify a date when such resignation shall take place, which shall
not be less than 90 days after the date such notice is given, where practicable.
(c) A Trustee may be removed by unanimous vote of the remaining
Trustees in the event that he or she becomes unable to discharge his or her
duties hereunder due to accident or physical or mental deterioration, or for
other good cause. Good cause shall be deemed to include, without limitation, any
substantial failure to comply with the general administration provisions of
Section 2.2 above, a consistent pattern of neglect and failure to perform or
participate in performing the duties of the Trustees hereunder, or repeated
non-attendance at scheduled meetings. Such removal shall require the approval of
the Bankruptcy Court and shall take effect at such time as the Bankruptcy Court
shall determine.
4.3 APPOINTMENT OF SUCCESSOR TRUSTEES.
(a) In the event of a vacancy in the position of PI Trustee,
whether by term expiration, resignation or removal, the remaining Trustees shall
consult with the TAC and the Future Claimants' Representative concerning the
appointment of a successor PI Trustee. The vacancy shall be filled by the
unanimous vote of the remaining Trustees unless a majority of the TAC or the
Future Claimants' Representative vetoes the appointment. In the event that the
remaining Trustees cannot agree on a Successor PI Trustee, or a majority of the
TAC or the Future Claimants' Representative vetoes the appointment of a
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successor PI Trustee, the Bankruptcy Court shall make the appointment. Nothing
shall prevent the reappointment of a PI Trustee for an additional term or terms.
(b) Immediately upon the appointment of any Successor PI Trustee,
all rights, titles, duties, powers and authority of the predecessor PI Trustee
hereunder shall be vested in, and undertaken by, the Successor PI Trustee
without any further act. No Successor PI Trustee shall be liable personally for
any act or omission of his or her predecessor Trustees.
(c) Each Successor PI Trustee shall serve until the earlier of (i)
the end of a full term of five (5) years if the predecessor PI Trustee completed
his or her term, (ii) the end of the remainder of the term of the PI Trustee
whom he or she is replacing if said predecessor PI Trustee did not complete said
term, (iii) his or her death, (iv) his or her resignation pursuant to Section
4.2(b) above, (v) his or her removal pursuant to Section 4.2(c) above, or (vi)
the termination of the PI Trust pursuant to Section 7.2 below.
4.4 LIMITATION OF LIABILITY OF TRUSTEES, TAC, AND FUTURE
CLAIMANTS' REPRESENTATIVE. The Trustees, the members of the TAC, and the Future
Claimants' Representative shall not be liable to the PI Trust, to any individual
holding an asbestos claim, or to any other person, except for such individual's
own breach of trust committed in bad faith or willful misappropriation. In
addition, the Trustees, the members of the TAC, and the Future Claimants'
Representative shall not be liable for any act or omission of any other person
unless such Trustee, member of the TAC, or Future Claimants' Representative
acted with bad faith in the selection or retention of such person.
4.5 COMPENSATION AND EXPENSES OF TRUSTEES.
(a) The Trustees shall receive a retainer from the PI Trust for
their services as Trustees in the amount of $65,000 per annum, which amount
shall be payable in quarterly installments, except that the Managing Trustee
shall receive $75,000 per annum for his or her service. All Trustees shall also
receive the sum of $2,500 for attendance at a meeting of the Trustees, which
amount shall not be charged against the annual retainer. A meeting is any
scheduled, emergency or sub-committee meeting of the Trustees that is noticed
and/or authorized by the chairperson in which participation is either in person
or telephonically and the duration of which is no less than two (2) hours and
not in excess of five (5) hours. A PI Trust meeting also includes attendance at
meetings of Reorganized AWI's Board of Directors. For all other time expended in
preparation, authorized special projects, and time in excess of the (5) hours in
a meeting, the Trustees shall receive the sum of $450 per hour, and the sum of
$225 per hour for non-working travel, in both cases computed on a quarter-hour
basis. The Trustees shall record all meeting and hourly time to be charged to
the Trust on a daily basis. The per annum retainer, meeting and hourly
compensation payable to the Trustees hereunder shall be reviewed every three (3)
years and appropriately adjusted for changes in the cost of living. Any other
changes in compensation of the Trustees shall be made subject to the approval of
the Bankruptcy Court.
(b) The PI Trust will promptly reimburse the Trustees for all
reasonable out-of-pocket costs and expenses incurred by the Trustees in
connection with the performance of their duties hereunder.
(c) The PI Trust shall include a description of the amounts paid
under this Section 4.5 in the accounts to be filed with the Bankruptcy Court and
provided to the TAC, the Future Claimants' Representative, and Reorganized AWI
pursuant to Section 2.2(c)(i).
4.6 INDEMNIFICATION OF TRUSTEES, TAC, FUTURE CLAIMANTS'
REPRESENTATIVE, AND ADDITIONAL INDEMNITEES.
(a) The PI Trust shall indemnify and defend the Trustees, the
members of the TAC, and the Futures Claimants' Representative in the performance
of their duties hereunder to the fullest extent that a corporation or trust
organized under the laws of the State of Delaware is from time to time entitled
to indemnify and defend such persons against any and all liabilities, expenses,
claims, damages or losses incurred by them in the performance of their duties
hereunder or in connection with activities undertaken by them prior to the
9
Effective Date in connection with the formation, establishment, or funding of
the PI Trust. The PI Trust may indemnify any of the Additional Indemnitees in
the performance of their duties hereunder to the fullest extent that a
corporation or trust organized under the laws of the PI Trust's situs is from
time to time entitled to indemnify and defend such persons against any and all
liabilities, expenses, claims, damages or losses incurred by them in the
performance of their duties hereunder or in connection with activities
undertaken by them prior to the Effective Date in connection with the formation,
establishment, or funding of the PI Trust. Notwithstanding the foregoing, no
individual shall be indemnified or defended in any way for any liability,
expense, claim, damage, or loss for which he or she is ultimately liable under
Section 4.4 above.
(b) Reasonable expenses, costs and fees (including attorneys' fees
and costs) incurred by or on behalf of a PI Trustee, a member of the TAC, Future
Claimants' Representative, or Additional Indemnitee in connection with any
action, suit, or proceeding, whether civil, administrative or arbitrative from
which they are indemnified by the PI Trust pursuant to Section 4.6(a) above,
shall be paid by the PI Trust in advance of the final disposition thereof upon
receipt of an undertaking, by or on behalf of the Trustees, the members of the
TAC, Future Claimants' Representative, or Additional Indemnitee, to repay such
amount in the event that it shall be determined ultimately by final order that
such PI Trustee, member of the TAC, Future Claimants' Representative, or
Additional Indemnitee is not entitled to be indemnified by the PI Trust.
(c) The Trustees may purchase and maintain reasonable amounts and
types of insurance on behalf of an individual who is or was a PI Trustee, member
of the TAC, Future Claimants' Representative, or Additional Indemnitee against
liability asserted against, or incurred by, such individual in that capacity or
arising from his or her status as a PI Trustee, TAC member, Future Claimants'
Representative, officer, employee, agent or other representative.
4.7 TRUSTEES' LIEN. The Trustees, members of the TAC, Future
Claimants' Representative, and the Additional Indemnitees shall have a first
priority lien upon the PI Trust Assets to secure the payment of any amounts
payable to them pursuant to Section 4.6 above.
4.8 TRUSTEES' EMPLOYMENT OF EXPERTS. The Trustees may, but shall
not be required to, retain and/or consult with counsel, accountants, appraisers,
auditors and forecasters, and other parties deemed by the Trustees to be
qualified as experts on the matters submitted to them, and the written opinion
of or information provided by any such parties on any matters submitted to them
by the Trustees shall be full and complete authorization and protection in
respect of any action taken or not taken by the Trustees hereunder in good faith
and in accordance with the written opinion of or information provided by any
such party.
4.9 TRUSTEES' INDEPENDENCE. The Trustees shall not, during the
term of their service, hold a financial interest in, act as attorney or agent
for, or serve as any other professional for Reorganized AWI. Notwithstanding the
foregoing, any PI Trustee may serve, without any additional compensation other
than the per diem compensation to be paid by the PI Trust pursuant to Section
4.5(a) above, as a director of Reorganized AWI. No PI Trustee shall act as an
attorney for any person who holds an asbestos claim.
4.10 BOND. The Trustees shall not be required to post any bond or
other form of surety or security unless otherwise ordered by the Bankruptcy
Court.
SECTION 5
TRUST ADVISORY COMMITTEE
------------------------
5.1 MEMBERS. The TAC shall consist of five (5) members, who shall
initially be the persons named on the signature page hereof.
5.2 DUTIES. The members of the TAC shall serve in a fiduciary
capacity representing all holders of present Asbestos Personal Injury Claims.
10
The Trustees must consult with the TAC on matters identified in Section 2.2(e)
above and in other provisions herein, and must obtain the consent of the TAC on
matters identified in Section 2.2(f) above. Where provided in the TDP, certain
other actions by the Trustees are also subject to the consent of the TAC.
5.3 TERM OF OFFICE.
(a) Each member of the TAC shall serve until the earlier of (i)
his or her death, (ii) his or her resignation pursuant to Section 5.3(b) below,
(iii) his or her removal pursuant to Section 5.3(c) below, or (iv) the
termination of the PI Trust pursuant to Section 7.2 below.
(b) A member of the TAC may resign at any time by written notice
to the other members of the TAC, the Trustees and the Future Claimants'
Representative. Such notice shall specify a date when such resignation shall
take effect, which shall not be less than ninety (90) days after the date such
notice is given, where practicable.
(c) A member of the TAC may be removed in the event that he or she
becomes unable to discharge his or her duties hereunder due to accident,
physical deterioration, mental incompetence, or a consistent pattern of neglect
and failure to perform or to participate in performing the duties of such member
hereunder, such as repeated non-attendance at scheduled meetings, or for other
good cause. Such removal shall be made at the recommendation of the remaining
members of the TAC with the approval of the Bankruptcy Court.
5.4 APPOINTMENT OF SUCCESSOR.
(a) In the event of a vacancy caused by the resignation or death
of a TAC member, his or her successor shall be selected by the TAC member who is
resigning or deceased, or by his or her law firm in the vent that such member
had not pre-selected a successor. If neither the member nor the law firm
exercises the right to make such a selection, the successor shall be chosen by a
majority vote of the remaining TAC members. If a majority of the remaining
members cannot agree, the Bankruptcy Court shall appoint the successor. In the
event of a vacancy caused by the removal of a TAC member, the remaining members
of the TAC by majority vote shall name the successor. If the majority of
remaining members of the TAC cannot reach agreement, the Bankruptcy Court shall
appoint the successor.
(b) Each successor TAC member shall serve until the earlier of (i)
his or her death, (ii) his or her resignation pursuant to Section 5.3(b) above,
(iii) his or her removal pursuant to Section 5.3(c) above, or (iv) the
termination of the PI Trust pursuant to Section 7.2 below.
5.5 TAC'S EMPLOYMENT OF PROFESSIONALS.
(a) The TAC may but is not required to retain and/or consult
counsel, accountants, appraisers, auditors, forecasters, experts, and financial
and investment advisors, and such other parties deemed by the TAC to be
qualified as experts on matters submitted to the TAC (the "PROFESSIONALS"). The
TAC and its Professionals shall at all times have complete access to the PI
Trust's officers, employees and agents, as well as to the Professionals retained
by the PI Trust, and shall also have complete access to all information
generated by them or otherwise available to the PI Trust or the Trustees. In the
absence of gross negligence, the written opinion of or information provided by
any Professional deemed by the TAC to be qualified as an expert on the
particular matter submitted to the TAC shall be full and complete authorization
and protection in support of any action taken or not taken by the TAC in good
faith and in accordance with the written opinion of or information provided by
the Professional.
(b) The Trust shall promptly reimburse, or pay directly if so
instructed, the TAC for all reasonable fees and costs associated with the TAC's
employment of legal counsel pursuant to this provision in connection with the
TAC's performance of its duties hereunder. The Trust shall also promptly
reimburse, or pay directly if so instructed, the TAC for all reasonable fees and
costs associated with the TAC's employment of any other Professional pursuant to
this provision in connection with the TAC's performance of its duties hereunder;
provided, however, that (i) the TAC has first submitted to the Trust a written
request for such reimbursement setting forth the reasons (A) why the TAC desires
11
to employ such Professional, and (B) why the TAC cannot rely on Professionals
retained by the Trust to meet the need of the TAC for such expertise or advice,
and (ii) the Trust has approved the TAC's request for reimbursement in writing.
If the Trust agrees to pay for the TAC Professional, such reimbursement shall be
treated as a Trust expense. If the Trust declines to pay for the TAC
Professional, it must set forth its reasons in writing. If the TAC still desires
to employ such Professional at Trust expense, the TAC and/or the Trustees shall
resolve their dispute pursuant to Section 7.13 below.
5.6 COMPENSATION AND EXPENSES OF TAC. The members of the TAC shall
receive compensation from the PI Trust for their services as TAC members in the
form of a reasonable hourly rate set by the Trustees for attendance at meetings
or other conduct of PI Trust business. The members of the TAC shall also be
reimbursed promptly for all reasonable out-of-pocket costs and expenses incurred
in connection with the performance of their duties hereunder. Such reimbursement
or direct payment shall be deemed a PI Trust expense. The PI Trust shall include
a description of the amounts paid under this Section 5.6 in the accounts to be
filed with the Bankruptcy Court and provided to the Trustees, the Future
Claimants' Representative, and Reorganized AWI pursuant to Section 2.2(c)(i).
5.7 PROCEDURES FOR CONSULTATION WITH AND OBTAINING THE CONSENT OF
THE TAC.
(a) CONSULTATION PROCESS.
(i) In the event the Trustees are required to consult
with the TAC pursuant to Section 2.2(e) above or on other matters as
provided herein, the Trustees shall provide the TAC with written
advance notice of the matter under consideration, and with all relevant
information concerning the matter as is reasonably practicable under
the circumstances. The Trustees shall also provide the TAC with such
reasonable access to Professionals and other experts retained by the PI
Trust and its staff (if any) as the TAC may reasonably request during
the time that the Trustees are considering such matter, and shall also
provide the TAC the opportunity, at reasonable times and for reasonable
periods of time, to discuss and comment on such matter with the
Trustees.
(ii) The Trustees shall take into consideration the time
required for the TAC, if its members so wish, to engage and consult
with its own independent financial or investment advisors as to such
matter.
(b) CONSENT PROCESS.
(i) In the event the Trustees are required to obtain the
consent of the TAC pursuant to Section 2.2(f) above, the Trustees shall
provide the TAC with a written notice stating that their consent is
being sought pursuant to that provision, describing in detail the
nature and scope of the action the Trustees propose to take, and
explaining in detail the reasons why the Trustees desire to take such
action. The Trustees shall provide the TAC as much relevant additional
information concerning the proposed action as is reasonably practicable
under the circumstances. The Trustees shall also provide the TAC with
such reasonable access to Professionals and other experts retained by
the PI Trust and its staff (if any) as the TAC may reasonably request
during the time that the Trustees are considering such action, and
shall also provide the TAC the opportunity, at reasonable times and for
reasonable periods of time, to discuss and comment on such action with
the Trustees.
(ii) The TAC must consider in good faith and in a timely
fashion any request for its consent by the Trustees, and must in any
event advise the Trustees in writing of its consent or its objection to
the proposed action within 30 days of receiving the original request
for consent from the Trustees. The TAC may not withhold its consent
unreasonably. If the TAC decides to withhold its consent, it must
explain in detail its objections to the proposed action. If the TAC
does not advise the Trustees in writing of its consent or its
objections to the action within 30 days of receiving notice regarding
such request, the TAC's consent to the proposed actions shall be deemed
to have been affirmatively granted.
12
(iii) If, after following the procedures specified in this
Section 5.7(b), the TAC continues to object to the proposed action and
to withhold its consent to the proposed action, the Trustees and/or the
TAC shall resolve their dispute pursuant to Section 7.13. However, the
burden of proof with respect to the validity of the TAC's objection and
withholding of its consent shall be on the TAC.
SECTION 6
THE FUTURE CLAIMANTS' REPRESENTATIVE
------------------------------------
6.1 DUTIES. The initial Future Claimants' Representative shall be
the individual identified on the signature pages hereto, namely Dean M.
Trafelet, Esquire. He shall serve in a fiduciary capacity, representing the
interests of the holders of future Asbestos Personal Injury Claims for the
purpose of protecting the rights of such persons. The Trustees must consult with
the Future Claimants' Representative on matters identified in Section 2.2(e)
above and on certain other matters provided herein, and must obtain the consent
of the Future Claimants' Representative on matters identified in Section 2.2(f)
above. Where provided in the TDP, certain other actions by the Trustees are also
subject to the consent of the Future Claimants' Representative.
6.2 TERM OF OFFICE.
(a) The Future Claimants' Representative shall serve until the
earlier of (i) his or her death, (ii) his or her resignation pursuant to Section
6.2(b) below, (iii) his or her removal pursuant to Section 6.2(c) below, or (iv)
the termination of the PI Trust pursuant to Section 7.2 below.
(b) The Future Claimants' Representative may resign at any time by
written notice to the Trustees. Such notice shall specify a date when such
resignation shall take effect, which shall not be less than ninety (90) days
after the date such notice is given, where practicable.
(c) The Future Claimants' Representative may be removed by the
Bankruptcy Court in the event he or she becomes unable to discharge his or her
duties hereunder due to accident, physical deterioration, mental incompetence,
or a consistent pattern of neglect and failure to perform or to participate in
performing the duties hereunder, such as repeated non-attendance at scheduled
meetings, or for other good cause.
6.3 APPOINTMENT OF SUCCESSOR. A vacancy caused by resignation or
death shall be filled with an individual nominated prior to the effective date
of the resignation or the death by the resigning Future Claimants'
Representative, and a vacancy caused by removal of the Future Claimants'
Representative shall be filled with an individual nominated by the Trustees, in
consultation with the TAC, subject to the approval of the Bankruptcy Court. In
the event a majority of the Trustees cannot agree, or a nominee has not been
pre-selected, the successor shall be appointed by the Bankruptcy Court.
6.4 FUTURE CLAIMANTS' REPRESENTATIVE'S EMPLOYMENT OF
PROFESSIONALS.
(a) The Future Claimants' Representative may but is not required
to retain and/or consult counsel, accountants, appraisers, auditors,
forecasters, experts, and financial and investment advisors, and such other
parties deemed by the Future Claimants' Representative to be qualified as
experts on matters submitted to the Future Claimants' Representative (the
"PROFESSIONALS"). The Future Claimants' Representative and his or her experts
shall at all times have complete access to the PI Trust's officers, employees
and agents, as well as to the Professionals retained by the PI Trust, and shall
also have complete access to all information generated by them or otherwise
available to the PI Trust or the Trustees. In the absence of gross negligence,
the written opinion of or information provided by any Professional deemed by the
Future Claimants' Representative to be qualified as an expert on the particular
matter submitted to the Future Claimants' Representative shall be full and
complete authorization and protection in support of any action taken or not
taken by the Future Claimants' Representative in good faith and in accordance
with the written opinion of or information provided by the Professional.
13
(b) The Trust shall promptly reimburse, or pay directly if so
instructed, the Future Claimants' Representative for all reasonable fees and
costs associated with the Future Claimants' Representative's employment of legal
counsel pursuant to this provision in connection with the Future Claimants'
Representative's performance of his or her duties hereunder. The Trust shall
also promptly reimburse, or pay directly if so instructed, the Future Claimants'
Representative for all reasonable fees and costs associated with the Future
Claimants' Representative's employment of any other Professionals pursuant to
this provision in connection with the Future Claimants' Representative's
performance of his or her duties hereunder; provided, however, that (i) the
Future Claimants' Representative has first submitted to the Trust a written
request for such reimbursement setting forth the reasons (A) why the Future
Claimants' Representative desires to employ the Professional, and (B) why the
Future Claimants' Representative cannot rely on Professionals retained by the
Trust to meet the need of the Future Claimants' Representative for such
expertise or advice, and (ii) the Trust has approved the Future Claimants'
Representative's request for reimbursement in writing. If the Trust agrees to
pay for the Future Claimants' Representative's Professional, such reimbursement
shall be treated as a Trust Expense. If the Trust declines to pay for the Future
Claimants' Representative's Professional, it must set forth its reasons in
writing. If the Future Claimants' Representative still desires to employ the
Professional at Trust expense, the Future Claimants' Representative and/or the
Trustees shall resolve their dispute pursuant to Section 7.13 below.
6.5 COMPENSATION AND EXPENSES OF THE FUTURE CLAIMANTS'
REPRESENTATIVE. The Future Claimants' Representative shall receive compensation
from the PI Trust in the form of the Future Claimants' Representative's normal
hourly rate for services performed. The PI Trust will promptly reimburse the
Future Claimants' Representative for all reasonable out-of-pocket costs and
expenses incurred by the Future Claimants' Representative in connection with the
performance of his or her duties hereunder. Such reimbursement or direct payment
shall be deemed a PI Trust expense. The PI Trust shall include a description of
the amounts paid under this Section 6.5 in the accounts to be filed with the
Bankruptcy Court and provided to the Trustees, the Future Claimants'
Representative, and Reorganized AWI pursuant to Section 2.2(c)(i).
6.6 PROCEDURES FOR CONSULTATION WITH AND OBTAINING THE CONSENT OF
THE FUTURE CLAIMANTS REPRESENTATIVE.
(a) CONSULTATION PROCESS.
(i) In the event the Trustees are required to consult
with the Future Claimants' Representative pursuant to Section 2.2(e)
above or on any other matters specified herein, the Trustees shall
provide the Future Claimants' Representative with written advance
notice of the matter under consideration, and with all relevant
information concerning the matter as is reasonably practicable under
the circumstances. The Trustees shall also provide the Future
Claimants' Representative with such reasonable access to Professionals
and other experts retained by the PI Trust and its staff (if any) as
the Future Claimants' Representative may reasonably request during the
time that the Trustees are considering such matter, and shall also
provide the Future Claimants' Representative the opportunity, at
reasonable times and for reasonable periods of time, to discuss and
comment on such matter with the Trustees.
(ii) The Trustees shall take into consideration the time
required for the Future Claimants' Representative, if he or she so
wishes, to engage and consult with his or her own independent financial
or investment advisors as to such matter.
(b) CONSENT PROCESS.
(i) In the event the Trustees are required to obtain the
consent of the Future Claimants' Representative pursuant to Section
2.2(f) above, the Trustees shall provide the Future Claimants'
Representative with a written notice stating that his or her consent is
being sought pursuant to that provision, describing in detail the
nature and scope of the action the Trustees propose to take, and
explaining in detail the reasons why the Trustees desire to take such
14
action. The Trustees shall provide the Future Claimants' Representative
as much relevant additional information concerning the proposed action
as is reasonably practicable under the circumstances. The Trustees
shall also provide the Future Claimants' Representative with such
reasonable access to Professional and other experts retained by the PI
Trust and its staff (if any) as the Future Claimants' Representative
may reasonably request during the time that the Trustees are
considering such action, and shall also provide the Future Claimants'
Representative the opportunity, at reasonable times and for reasonable
periods of time, to discuss and comment on such action with the
Trustees.
(ii) The Future Claimants' Representative must consider in
good faith and in a timely fashion any request for his or her consent
by the Trustees, and must in any event advise the Trustees in writing
of his or her consent or objection to the proposed action within 30
days of receiving the original request for consent from the Trustees.
The Future Claimants' Representative may not withhold his or her
consent unreasonably. If the Future Claimants' Representative decides
to withhold consent, he or she must explain in detail his or her
objections to the proposed action. If the Future Claimants'
Representative does not advise the Trustees in writing of his or her
consent or objections to the proposed action within 30 days of
receiving the notice from the Trustees regarding such consent, the
Future Claimants' Representative's consent shall be deemed to have been
affirmatively granted.
(iii) If, after following the procedures specified in this
Section 5.7(b), the Future Claimants' Representative continues to
object to the proposed action and to withhold its consent to the
proposed action, the Trustees and/or the Future Claimants'
Representative shall resolve their dispute pursuant to Section 7.13.
However, the burden of proof with respect to the validity of the Future
Claimants' Representative's objection and withholding of his or her
consent shall be on the Future Claimants' Representative.
SECTION 7
GENERAL PROVISIONS
------------------
7.1 IRREVOCABILITY. The PI Trust is irrevocable.
7.2 TERMINATION.
(a) The PI Trust shall automatically terminate on the date ninety
(90) days after the first to occur of the following events:
(i) the Trustees decide to terminate the PI Trust because
(A) they deem it unlikely that new asbestos claims will be filed
against the PI Trust, (B) all Asbestos Personal Injury Claims duly
filed with the PI Trust have been liquidated and paid to the extent
provided in this PI Trust Agreement and the TDP or disallowed by a
final, non-appealable order, to the extent possible based upon the
funds available through the Plan, and (C) twelve (12) consecutive
months have elapsed during which no new asbestos claim has been filed
with the PI Trust; or
(ii) if the Trustees have procured and have in place
irrevocable insurance policies and have established claims handling
agreements and other necessary arrangements with suitable third parties
adequate to discharge all expected remaining obligations and expenses
of the PI Trust in a manner consistent with this PI Trust Agreement and
the TDP, the date on which the Bankruptcy Court enters an order
approving such insurance and other arrangements and such order becomes
a final order; or
(iii) to the extent that any rule against perpetuities
shall be deemed applicable to the PI Trust, twenty-one (21) years less
ninety-one (91) days pass after the death of the last survivor of all
of the descendants of the late Joseph P. Kennedy, Sr., father of the
late President John F. Kennedy, living on the date hereof.
15
(b) On the Termination Date, after payment of all the PI Trust's
liabilities have been provided for, all monies remaining in the PI Trust estate
shall be given to such organization(s) exempt from federal income tax under
section 501(c)(3) of the Internal Revenue Code, which tax-exempt organization(s)
shall be selected by the Trustees using their reasonable discretion; provided,
however, that (i) if practicable, the activities of the selected tax-exempt
organization(s) shall be related to the treatment of, research on, or the relief
of suffering of individuals suffering from asbestos related lung disorders, and
(ii) the tax-exempt organization(s) shall not bear any relationship to
Reorganized AWI within the meaning of section 468B(d)(3) of the Internal Revenue
Code. Notwithstanding any contrary provision of the Plan and related documents,
this Section 7.2(b) cannot be modified or amended.
7.3 AMENDMENTS. The Trustees, after consultation with the TAC and
the Future Claimants' Representative, and subject to the unanimous consent of
the members of the TAC and the Future Claimants' Representative, may modify or
amend this PI Trust Agreement and the PI Trust By-laws. The Trustees, after
consultation with the TAC and the Future Claimants' Representative, and subject
to the consent of the TAC and the Future Claimants' Representative, may modify
or amend the TDP; provided, however, that no amendment to the TDP shall be
inconsistent with the provisions limiting amendments to that document provided
therein, and in particular the provisions limiting amendment of the Claims
Payment Ratio set forth in Section 2.5 of the TDP and of the Payment Percentage
set forth in Section 4.2 of the TDP. Any modification or amendment made pursuant
to this Article must be done in writing. Notwithstanding anything contained in
this PI Trust Agreement to the contrary, neither this PI Trust Agreement, the PI
Trust Bylaws, the TDP, nor any document annexed to the foregoing shall be
modified or amended in any way that could jeopardize, impair, or modify the
applicability of section 524(g) of the Bankruptcy Code, the efficacy or
enforceability of the injunction entered thereunder, or the PI Trust's qualified
settlement fund status under Section 468B of the Internal Revenue Code.
7.4 [Intentionally omitted]
7.5 SEVERABILITY. Should any provision in this PI Trust Agreement
be determined to be unenforceable, such determination shall in no way limit or
affect the enforceability and operative effect of any and all other provisions
of this PI Trust Agreement.
7.6 NOTICES. Notices to persons asserting claims shall be given by
first class mail, postage prepaid, at the address of such person, or, where
applicable, such person's legal representative, in each case as provided on such
person's claim form submitted to the PI Trust with respect to his or her PI
Trust Claim.
(a) Any notices or other communications required or permitted
hereunder to the following parties shall be in writing and delivered at the
addresses designated below, or sent by telex, telecopy or facsimile pursuant to
the instructions listed below, or mailed by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows, or to such other
address or addresses as may hereafter be furnished in writing to each of the
other parties listed below in compliance with the terms hereof.
To the PI Trust through the Trustees: Anne M. Ferazzi, Trustee
11923 Winwood
Houston, TX 77024
Telephone: (713) 334-7775
Facsimile: (713) 953-1107
Email: ferazzi@mindspring.com
Mr. Harry Huge, Trustee
25 East Battery
Charleston, SC 29401
Telephone: (843) 722-1628
Facsimile: (843) 720-8794
Email: harryhuge@comcast.net
16
Paul A. Knuti, Trustee
7727 Sauna Road
Embarrass, MN 55732
Telephone: (218) 984-3048
Facsimile: (218) 984-3864
Email: knutifarm@frontiernet.net
Lewis R. Sifford, Trustee
Sifford Anderson Vice & MacFarlane
2001 Bryan Street - Suite 2050
Dallas, TX 75202
Telephone: (214) 978-4611
Facsimile: (214) 220-0206
Email: LSifford@sifford.com
Thomas M. Tully, Trustee
33 North Dearborn - Suite 2450
Chicago, IL 60602
Telephone: (312) 917-8700
Facsimile: (312) 917-8711
Email: Thomas@tullyassoc.com
With a copy to:
Kevin E. Irwin
Keating, Muething & Klekamp, PLL
1400 Provident Tower
One East Fourth Street
Cincinnati, OH 45202
Telephone: (513) 579-6400
Facsimile: (513) 579-6457
Email: kirwin@kmklaw.com
To the TAC: John D. Cooney
Cooney & Conway
120 North LaSalle - 30th Floor
Chicago, IL 60602
Telephone: (312) 236-6166
Facsimile: (312) 236-3029
Email: jcooney@cooneyconway.com
Russell W. Budd
Baron & Budd
Suite 1100
3102 Oak Lawn Avenue
Dallas, TX 75219
Telephone: (214) 523-6265
Facsimile: (214) 520-1181
Email: rbudd@baronbudd.com
17
Steven Kazan
Kazan, McClain, Abrams, Fernandez,
Lyons, Farrise & Greenwood
171 Twelfth Street
Third Floor
Oakland, CA 94607
Telephone: (510) 465-7728
Facsimile: (510) 835-4913
Email: skazan@kazanlaw.com
Joseph F. Rice
Motley Rice LLC
28 Bridgeside Boulevard
P.O. Box 1792
Mount Pleasant, SC 29465
Telephone: (843) 216-9159
Facsimile: (843) 216-9290
Email: jrice@motleyrice.com
Perry Weitz
Weitz & Luxemberg, P.C.
180 Maiden Lane
New York, NY 10038-4925
Telephone: (212) 558-5508
Facsimile: (212) 344-5461
Email: pweitz@weitzlux.com
With a copy to:
Elihu Inselbuch
Caplin & Drysdale, Chartered
375 Park Avenue
35th Floor
New York, NY 10152-3500
Telephone: (212) 319-9240
Facsimile: (212) 644-6755
Email: ei@capdale.com
To the Future Claimants' Representative: Dean M. Trafelet
Future Claimants' Representative
P.O. Box 518
9130 Wild Lane
Baileys Harbor, WI 54202
Telephone: (312) 335-1726
Facsimile: (312) 335-8015
Email: dtrafelet@dcwis.com and
dtrafelet@sbcglobal.net
18
With a copy to:
Andrew A. Kress
Kaye Scholer LLP
425 Park Avenue
New York, New York 10022
Telephone: 212-836-8781
Facsimile: 212-836-6728
Email: akress@kayescholer.com
To Reorganized AWI: General Counsel
Armstrong World Industries, Inc.
2500 Columbia Avenue
Lancaster, PA 17522
Telephone: (717) 396-2168
Facsimile: (717) 396-6121
With a copy to:
Debra A. Dandeneau
Weil, Gotshal & Manges LLP
767 Fifth Avenue
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Email: debra.dandeneau@weil.com
(b) All such notices and communications if mailed shall be
effective when physically delivered at the designated addresses or, if
electronically transmitted, when the communication is received at the designated
addresses and confirmed by the recipient by return transmission.
7.7 SUCCESSORS AND ASSIGNS. The provisions of this PI Trust
Agreement shall be binding upon and inure to the benefit of AWI, the PI Trust,
the Trustees and Reorganized AWI, and their respective successors and assigns,
except that neither AWI, the PI Trust, the Trustees nor Reorganized AWI may
assign or otherwise transfer any of its, or their, rights or obligations under
this PI Trust Agreement except, in the case of the PI Trust and the Trustees, as
contemplated by Section 2.1 above.
7.8 LIMITATION ON CLAIM INTERESTS FOR SECURITIES LAWS PURPOSES.
Asbestos Personal Injury Claims, and any interests therein (a) shall not be
assigned, conveyed, hypothecated, pledged or otherwise transferred, voluntarily
or involuntarily, directly or indirectly, except by will or under the laws of
descent and distribution; (b) shall not be evidenced by a certificate or other
instrument; (c) shall not possess any voting rights; and (d) shall not be
entitled to receive any dividends or interest; provided, however, that clause
(a) of this Section 7.8 shall not apply to the holder of a claim that is
subrogated to a PI Trust Claim as a result of its satisfaction of such PI Trust
Claim.
7.9 ENTIRE AGREEMENT; NO WAIVER. The entire agreement of the
parties relating to the subject matter of this PI Trust Agreement is contained
herein and in the documents referred to herein, and this PI Trust Agreement and
such documents supersede any prior oral or written agreements concerning the
subject matter hereof. No failure to exercise or delay in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any further exercise thereof or of any other right, power or privilege. The
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rights and remedies herein provided are cumulative and are not exclusive of
rights under law or in equity.
7.10 HEADINGS. The headings used in this PI Trust Agreement are
inserted for convenience only and do not constitute a portion of this PI Trust
Agreement, nor in any manner affect the construction of the provisions of this
PI Trust Agreement.
7.11 GOVERNING LAW. This PI Trust Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware, without
regard to Delaware conflict of law principles.
7.12 SETTLOR REPRESENTATIVE AND COOPERATION. AWI is hereby
irrevocably designated as the Settlor, and it is hereby authorized to take any
action required of the Settlor in connection with the PI Trust Agreement. AWI
agrees to cooperate in implementing the goals and objectives of this PI Trust.
7.13 DISPUTE RESOLUTION. Any disputes that arise under this PI
Trust Agreement or under the TDP shall be resolved by submission of the matter
to an alternative dispute resolution ("ADR") process mutually agreeable to the
parties involved. Should any party to the ADR process be dissatisfied with the
decision of the arbitrator(s), that party may apply to the Bankruptcy Court for
a judicial determination of the matter. In either case, if the dispute arose
pursuant to the consent provision set forth in Section 5.7(b) (in the case of
the TAC) or Section 6.6(b) (in the case of the Future Claimants'
Representative), the burden of proof shall be on the party or parties who
withheld consent to show that the objection was valid. Should the dispute not be
resolved by ADR process within thirty (30) days after submission, the parties
are relieved of the requirement to pursue ADR prior to application to the
Bankruptcy Court. Notwithstanding anything else herein contained, to the extent
any provision of this PI Trust Agreement is inconsistent with any provision of
the Plan or the TDP, the Plan or the TDP shall control.
7.14 ENFORCEMENT AND ADMINISTRATION. The provisions of this PI
Trust Agreement and the TDP attached hereto shall be enforced by the Bankruptcy
Court pursuant to the Plan. The parties hereby further acknowledge and agree
that the Bankruptcy Court shall have exclusive jurisdiction over the settlement
of the accounts of the Trustees and over any disputes hereunder not resolved by
alternative dispute resolution in accordance with Section 7.13 above.
7.15 EFFECTIVENESS. This PI Trust Agreement shall not become
effective until it has been executed and delivered by all the parties hereto.
7.16 COUNTERPART SIGNATURES. This PI Trust Agreement may be
executed in any number of counterparts, each of which shall constitute an
original, but such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties have executed this PI Trust Agreement
this _____ day of ________________________, _______.
ARMSTRONG WORLD INDUSTRIES, INC., SETTLOR, BY
Name:
-----------------------------------------
Title:
-----------------------------------------
RUSTEES
-----------------------------------------------
Anne M. Ferazzi
-----------------------------------------------
Harry Huge
-----------------------------------------------
Paul A. Knuti
-----------------------------------------------
Lewis R. Sifford
-----------------------------------------------
Thomas M. Tully
ASBESTOS CLAIMANTS' COMMITTEE
By:
--------------------------------------------
John D. Cooney
TRUST ADVISORY COMMITTEE
-----------------------------------------------
John D. Cooney
-----------------------------------------------
Russell W. Budd
-----------------------------------------------
Steven Kazan
-----------------------------------------------
Joseph F. Rice
-----------------------------------------------
Perry Weitz
FUTURE CLAIMANTS' REPRESENTATIVE
-----------------------------------------------
Dean M. Trafelet, Esq.
Annex A to the Trust Agreement
ARMSTRONG WORLD INDUSTRIES, INC.
ASBESTOS PERSONAL INJURY SETTLEMENT TRUST
BYLAWS
ARTICLE I.
OFFICES
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Section 1. Principal Office. The initial principal
office of the Armstrong World Industries, Inc. Asbestos Personal Injury
Settlement Trust shall be in ____________ or at such other places as the
Trustees shall from time to time select.
Section 2. Other Offices. The Trust may have such
other offices at such other places as the Trustees may from time to time
determine to be necessary for the efficient and cost-effective administration of
the Trust.
ARTICLE II.
TRUSTEES
--------
Section 1. Control of Property, Business, and Affairs.
The property, business, and affairs of the Trust shall be managed by or under
the direction of the Trustees, provided that certain decisions of the Trustees
shall be subject to the consent of the PI Trust Advisory Committee ("TAC") and
the Legal Representative for Asbestos-related future claimants ("FUTURE
CLAIMANTS' REPRESENTATIVE"), pursuant to the Armstrong World Industries, Inc.
Asbestos Personal Injury Settlement Trust Agreement ("TRUST AGREEMENT") to which
these Bylaws are attached. In the event of any conflict between the provisions
of the Trust Agreement and the provisions of these Bylaws, the provisions of the
Trust Agreement shall govern and control.
Section 2. Number, Resignation and Removal. The number
of Trustees and provisions governing their resignation and removal and the
appointment of successors are governed by the Trust Agreement.
Section 3. Quorum and Manner of Acting. A majority of
the Trustees shall constitute a quorum for the transaction of business. In the
absence of a quorum, the Trustees present may adjourn the meeting until a quorum
shall be present. The vote, at a meeting at which a quorum is present, of a
majority of all Trustees shall be an act of the Trustees.
Section 4. Regular Meetings. Regular meetings of the
Trustees with the TAC members and the Future Claimants' Representative may be
held at such times and places as shall from time to time be determined by the
Trustees. At least one regular meeting each year shall be held at the place
where the Trust maintains its principal office. The Trustees shall meet at least
once each calendar quarter and give notice annually of the schedule of regular
meetings to each Trustee, members of the TAC, and the Future Claimants'
Representative. Thereafter, meetings covered by the scheduled notice may be held
without further notice. Whenever possible, Trustees shall attend all regular
meetings in person.
- 2 -
Section 5. Special Meetings. Special meetings of the
Trustees shall be held whenever called by one or more of the Trustees. Notice of
each such meeting shall be delivered to each Trustee, TAC member, and the Future
Claimants' Representative, by overnight courier, by facsimile, or by e-mail to
the place, number, or e-mail address designated by each of them for receipt of
such notices, or, failing such designation, at their residence or usual place of
business, at least 24 hours before the time at which the meeting is to be held.
Such notice shall state the place, date, and hour of the meeting and the
purposes for which it is called. In lieu of the notice, a waiver of notice in
writing, signed by the individual involved, whether before or after the meeting,
shall be equivalent to a notice. Attendance at a meeting shall constitute a
waiver of notice of that meeting. In instances in which the Trustees reasonably
determine that attendance of the TAC members and the Future Claimants
Representative would compromise privileged communications or that the purposes
of the meeting concern matters confidential as to the Trustees, notices of such
a meeting shall be given only to the Trustees.
Section 6. Action Without a Meeting; Meeting by
Conference Call. Any action required or permitted to be taken at any meeting of
the Trustees may be taken without a meeting if all Trustees consent thereto in
writing, after notice to the TAC members and the Future Claimants'
Representatives pursuant to the notice provisions in Article II, Section 5,
above, and the writings are filed with the minutes of proceedings of the
Trustees.
The Trustees also may take any action required or permitted to
be taken at any meeting by means of conference telephone or other communication
equipment provided that all persons participating can hear and speak with each
other. Participation in such a meeting shall constitute presence in person at
such meeting.
Section 7. Committees. The Trustees may appoint
committees and delegate to them particular powers and responsibilities from time
to time.
ARTICLE III.
OFFICERS
--------
Section 1. Principal Officers. The Trustees shall
annually elect a Chair and such other principal officers, including, without
limitation, Vice Chair, Executive Director, Secretary and Treasurer, as the
Trustees believe will promote the efficient and cost-effective administration of
the Trust. Each such principal officer shall hold office until a successor shall
have been chosen and qualified or until death, resignation, retirement or
removal.
Section 2. Powers and Duties. All principal officers,
as between themselves and the Trust, shall respectively have such authority to
operate the Trust in the ordinary course of business and perform such duties as
are customarily incident to their respective offices in a corporate setting, and
such other powers and duties as may be specified from time to time by the
Trustees. The Trustees shall, from time to time, establish by resolution limits
on the authorization of expenditures and the extent of legal commitments that
may be made by the officers. Except for the Chair and Vice Chair, the officers
need not be Trustees.
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Section 3. Removal. The Chair and any other principal
officer may be removed as a principal officer with or without cause, at any
time, by resolution adopted by the Trustees at any regular meeting of the
Trustees or at any special meeting of the Trustees called for that purpose.
Section 4. Subordinate Officers. The Trustees may
appoint such other subordinate officers, agents, and employees as the Trustees
may deem necessary and advisable for the efficient and cost-effective
administration of the Trust, each of whom shall hold office for such period,
have such authority, and perform such duties as the Trustees may from time to
time determine. The Chair may remove any such subordinate officer, agent, or
employee at any time with or without cause.
Section 5. Resignations. Any officer may resign at any
time by giving written notice to the Trustees. The resignation of any officer
shall take effect upon receipt of notice thereof or at such later time as shall
be specified in such notice and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
ARTICLE IV.
AMENDMENTS
----------
Section 1. These Bylaws, other than Article II, Article
III, Section 3, and this Article IV, may be amended by the Trustees at any
meeting of the Trustees, provided that notice of the proposed amendment is
contained in the notice of such meeting. Article II, Article III, Section 3, and
this Article IV, may be amended by the Trustees only after receipt of the
consent of the TAC members and the Future Claimants' Representative.